Opinion
11944-24S
07-23-2024
DAN M. BOWER, DECEASED & DEBRA A. BOWER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
KATHLEEN KERRIGAN CHIEF JUDGE.
The Petition filed to commence this case on July 16, 2024, seeks review of a notice of deficiency issued to petitioners for the taxable year 2020. Both the Petition and the notice indicate that petitioner Dan M. Bower is deceased. Although the Petition is signed by petitioner Debra A. Bower, it is not clear from the record whether she is a fiduciary entitled to institute this case on behalf of the decedent Dan M. Bower's estate. At this time, no letters testamentary, letters of administration, or other probate court papers appear in the record.
In general, Rule 60(a) provides that a case shall be brought by the person against whom a deficiency has been determined or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and it is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The capacity of a fiduciary or other representative to litigate in this Court is determined by state law. See Rule 60(c). Accordingly, any person bringing a case in this Court on behalf of a deceased taxpayer bears the burden of proving that he or she is entitled under state law to institute such a case. See Rule 60(a), (c); see also Fehrs, 65 T.C. at 348-349; Sander v. Commissioner, T.C. Memo. 2022-103; Clifton v. Commissioner, T.C. Memo. 1981-493.
All Rule references are to the Tax Court Rules of Practice and Procedure, which are available on the Court's website at https://ustaxcourt.gov/rules.html.
Notwithstanding the foregoing, Rule 60(a) provides that a case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and that such ratification shall have the same effect as if the case had been properly brought by such party.
As noted above, it is not clear whether petitioner Debra A. Bower is a fiduciary entitled to institute this case on behalf of the decedent Dan M. Bower's estate. Thus, in order to confirm that the Court has jurisdiction to hear this case as to the decedent Dan M. Bower, we will direct petitioners to file a response as set forth below.
Upon due consideration and for cause, it is
ORDERED that, on or before August 26, 2024, petitioners shall file a response to this Order and shall state therein whether petitioner Debra A. Bower, or any other individual, is a duly appointed fiduciary for the estate of the decedent Dan M. Bower (decedent). Petitioners shall attach to that response (1) a copy of the death certificate for the decedent and (2) any letters testamentary, letters of administration, or other probate court papers duly appointing a fiduciary for the decedent's estate. It is further
ORDERED that the Clerk of the Court shall attach to this Order a copy of the Court's publication, "Representing a Taxpayer Before the U.S. Tax Court."